The Sex “Non-Specific” Ruling’s Confusing Implications

An hour after the High Court of Australia’s historic “non-specific” ruling on Wednesday, I was given a news story to sub-edit about the now famous transgender person, Norrie May Welby

Sub-editing can be a linguistic nightmare at the best of times, so this article really tested my patience. Journalists and pretty much anybody who speaks English rely on attributing things to either a man or woman. Variations of “he says” or “she said” are used in every news article.

So, what do you call somebody who is now officially “neither man nor woman”?

Most media outlets got around this question by referring to Norrie as, well, Norrie. The ABC used Norrie’s name 11 times in just one story but quoted everybody else as “Mr” or “he”. I also resorted to this tactic but was forced to publish the words “Norrie calls themselves”, which in retrospect was ridiculous. A single person is by definition not a plural. Unfortunately, “them” or “they” are sometimes the best we can muster in a world fixated on biological sex and gender.

Norrie is certainly not the first person to have raised this linguistic dilemma for frazzled journalists.

Transgenderism has been happening in some form for at least 4000 years if you consider social phenomenon like India’s hijras. What has changed is society’s collective need for a label (and we really love labels) for people like Norrie: a 52-year-old that was born a man but underwent “gender reassignment” surgery in 1989 to become something less easily definable.

In 2010, Norrie approached the NSW Registry of Births, Deaths and Marriages to be listed as neither a man nor woman. The registrar wasn’t too impressed and a four-year legal battle ensued. This week, when the High Court made its ruling, Norrie and others like Norrie were officially permitted to list their sex as “non-specific”. Interestingly, as Norrie pointed out on The Drum, this isn’t that revolutionary—we’ve been able to allocate Male, Female or “X” on an Australian passport since 2011.

Talking further about why we might even need an “X” or a gender neutral pronoun requires understanding the differences between biological sex and gender. It is while defining these two things that the relatively new transgender rights debate can get controversial, and at times a little outrageous among vocal opponents. For want of a more PC analogy: transgenderism is the Israel/Palestine of sexual politics, except there’s less guns and more fiddly surgery.

Firstly, biological sex is determined by DNA. You (at least currently) can’t change your chromosomes from saying that you’re a man or woman—but you can change their physical manifestations. Some people do this by dressing in certain ways, taking hormones or getting surgery to remove their penis or boobs, among other bits. This is where gender—a newer academic concept only introduced in the 1950s—comes in and makes everything really confusing.

Gender is a range of behaviours that society has historically attributed to either men or women. For example: getting into drunk fights—that’s masculine and vile. Wearing makeup and high heels is traditionally ladylike and sometimes really laborious. Picking your nose on the bus when you think nobody’s looking? That’s just human. Some people say gender is natural and others say it’s totally taught by society.

One person who definitely says gender is socially constructed is Professor Sheila Jeffreys, a feminist scholar at The University of Melbourne. I remember sitting through Sheila’s lecturers as a weedy undergrad and feeling my brain slowly spasm. Her view that transgenderism is a “human rights violation” was called “romantic apocalypticism” by trans activist Roz Kaveney in 2012, and she’s been the subject of censorship and intense trolling for her opinions.

Sheila didn’t mince words when I asked her about the High Court ruling. “I don’t think allowing a person to gain recognition as neither male nor female when they are in fact biologically male is progressive. It creates extra layers of confusion around important issues such as whether male-bodied persons such as [Norrie] should be entitled to access spaces in which women and girls are vulnerable and require dignity and privacy, such as toilets, shelters, prisons,” she said.

Personally, I’m far more worried about going to jail than no-pronoun Norrie being my cellmate, and I don’t think we should underestimate the gross stigma that male and female transgender people experience in everyday life. (Whether that’s due to personal choice, mental delusion or inescapable compulsion is a debate I’ll leave to the gender doomsayers.) But Sheila does raise a valid grey area: has Norrie really changed Norrie’s sex or just Norrie’s gender?

Some of Sheila’s fellow University of Melbourne academics say that the beauty of Norrie’s case is in this grey area. “The NSW ruling gives a significant number of people—who felt excluded from the existing binary options—the opportunity to have their identity granted institutional legitimacy,” says Dr Lauren Rosewarne, who lectures on everything from sexist advertising through to Aunt Flow in film and television. “This is a very positive thing,” she told VICE.

Lauren did say, however, that we should draw a legal line at Norrie’s “non-specific” label. “While it’s important that we accept the enormous variety of labels that people use in practice, I think institutionalising them all is impractical,” she said. There is an admittedly exhausting amount of sexual orientation labels to choose from in 2014. There’s “bigender” and “cis-man” through to “pansexual” and “skoliosexual”. They are all really confusing.

Dr Fran Martin, another gender expert at the University of Melbourne (yup, it’s the academic home of sexual controversy) agrees that the High Court decision is progressive. She says it marks an “interesting historical moment” for the conventional idea that men should be masculine and women should be feminine. “Perhaps (we’re seeing) the glimmer of possibility that the rigidly binary gender system…is beginning to be substantially challenged from a new direction,” said Fran to VICE.

Sheila vehemently disagrees with this last bit. She says we should stop trying to make gender happen, because it only emphasises feminine subordination and a phony binary of human behaviours. “I am female, a woman and proud of this,” she says. A post-gender world is only a lofty aspiration in 2014, but there is the more tangible fringe queer theory argument that it would be more progressive to forget about matching sex and gender altogether. What exactly is so weird about a dude with a beard in a dress?

And then there’s the idea that we should quit thinking that there’s a difference between males and females altogether. “Have you ever asked yourself why institutions continue to demand that we identify ourselves as male or female on every form? What difference does gender make to my bank account, to the tax office, or to the many other bureaucracies we deal with in daily life?” asked Marian Pitts from La Trobe University in The Conversation yesterday. These questions are essentially what sex “non-specific” seeks to answer.

Unfortunately, none of these questions had any illumination for my sub-editing. My only conclusion is that it’s incredibly tough to be PC in today’s sexually fractured society. In the last few decades, some people have called for “gender-blind” pronouns in the English language. The Humanist lexicon “hu”, The Twin Oaks Intentional Community’s “co”, and variations “eir” and “ey”, named after an American mathematician, Michael Spivak, are some unsuccessful attempts at alternatives to he, she, they or “it”. None of them really have the same ring as Norrie.